HHS Urges Court to Dismiss Lawsuit from ROI Vendor

In response to a lawsuit filed against it by release of information (ROI) vendor Ciox, the US Department of Health and Human Services (HHS) contends that the suit lacks standing and is asking the US District Court in Washington, DC to dismiss it.

In January of this year, Ciox filed a lawsuit against HHS in regards to two updates to HIPAA—updates which the vendor claims are “irrational, arbitrary, capricious and absurd.” In 2013, HHS released a final rule requiring providers “to respond to transmit health records to a designated individual, and include any medical information housed electronically, even if it is not stored in an electronic health record,” according to FierceHealthcare’s summary.

Additionally, Ciox took issue with 2016 HHS guidance that states any individual or entity requesting a person’s medical records, including ROI vendors, insurance companies, and law firms, can only be charged a reasonable, cost-based fee. Those fees, which also apply to business associates of covered entities, can be determined by the actual cost of labor, the average cost of labor, or a flat $6.50 rate. In its lawsuit, Ciox asked the court to invalidate the 2013 and 2016 modifications that are “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right,” Healthcare IT News reported.

“The long-term viability of the medical-records industry is critical to the delivery of high-quality, error-free and cost-effective healthcare services to patients by ensuring that healthcare providers have timely access to individual medical records,” Ciox said in a statement to FierceHealthcare.

In response, HHS stated in a court filing that Ciox’s claims should be dismissed in full because it lacks “third-party standing to challenge the rule and guidance and because Ciox’s claims are unripe… Indeed, because HHS has not and cannot take enforcement action against Ciox regarding the fees it charges for individual requests of PHI, Ciox cannot raise either an enforcement or pre-enforcement challenge to the Privacy Rule provision and guidance at issue,” the court filing states.

FierceHealthcare reports that Ciox received a warning from the HHS Office for Civil Rights (OCR) for charging an individual $224.65 after sending 353 pages of medical records to her lawyer.

Mary Butler is the associate editor at Journal of AHIMA.

7 Comments

  1. I wish so badly that HHS would stay out of any business. I also operate a medical record copy service and I have suffered plenty from these new fees. Sadly enough no one else has regulations on how much they can charge, so why do they think they should regulate ours. I have also been warned from the HHS about the fees that we charged and the complaint was from a law firm over a $35.00 charge for medical records. We copy medical records for attorney’s who get medical records for law suits. They charge $150.00 an hour to start with and if they win they get more. Insurance companies get medical records to write policies and draws premiums monthly. I understand that patients should not pay that amount and I can justify the $6.50 cent charge, but the insurance companies and attorney’s are now having the clients requesting records that they need so they don’t pay for records but they continue to charge they’re outrageous fees. I’ve had to lay of two employees which has put a strain on my company. As far as I can tell there will be more layoffs shortly as we continue to loose money because of the HHS regulations. I wish so badly I would have know of this law suit as I would have loved to have put my two bits in. I’m a family owned business that has been in business for 24 years. Sadly enough I can see that we’ll have to fold shortly if things don’t change. Our job is very time consuming, but HHS, attorney and insurance companies seems to think that it’s as simple as pushing a button. I would love for someone to come sit and see what we do all day instead of just assuming it just a touch of a button.

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  2. Our state mandates billable copy fees. Now HHS under cuts that fee to 6.50 flat rate. We are a critical access hospital and my department is greatly affected by this slash is our services. I provide the patient with a free copy or to a patient representative. Now the lawyers are writing up request having the patient sign.
    I have a couple of issues with this.
    1. unless the lawyer has been given the right to make medical decision for the patient then they do not qualify as a patient representative.
    2. The cost that HHS had set is not even 1/2 the proposed amount of minimum wage increase. Who came up with 6.50.? We work on 5 legacy systems most are paper. Have they see the cost of toner or paper or wages?
    3. We now have to keep death records for 50 years per HIPAA regulations. Has HHS considered the cost of storage, staff for 50 years? Who came up with that 6.50?

    CIOX is right this is ridiculous.

    4. Lawyer requested copies are for litigation not continuation of care. HHS should recognize the difference.

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  3. I’m one of those sending out medical record requests for personal injury cases whereby the injured parties are either without insurance benefits or have lost everything as a result of a motor vehicle collision. Ciox wants to charge $25.88 for a basic retrieval fee and then take on copying costs outside of state statutes, which ultimately gets charged back to the client who is already broke. Attorneys collecting records aren’t charging outside of what the Bar associations say they can charge on a contingency basis which is 1/3 of any recovery by the client. They don’t charge hourly for a PI case; otherwise, that would be 50 or 60 hours of work outside of any trial work. Give me a break! You have no idea what is lost in a law firm if there is no recovery for the broke client. Wish they’d argue Ciox ignoring the state statues, and have the client/patient sue.
    I don’t know where you all live, but this state using electronic records, and the doctors use electronic means to collect their information and it’s a push of a button. However, taking that the manual feed of paper records, you scan and send, you’re clearly working for the wrong providers. You can’t force fees onto someone that you have zero liability too. Your liability lies with the providers, not with the patient/client of any law firm. Your overhead is of no concern to the patient, again, that’s the providers issue. If they don’t want to use your service because of your cost, then they’ll go elsewhere. Not the patients fault.

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    • Your comments indicate that you are ignorant to the process of ROI. It is most definitely not a “push of a button”. Would you accept payment of $6.50 if you were responsible for handling protected health information of a patient who is already litigious by virtue of the lawsuit which is demanding information to validate their claim? Accept $6.50 to painstakingly go through each and every page of a medical record (electronic or not) to ensure that the information belongs to the patient? Mis-files are common and even more common when it’s an electronic record. Information is scanned into the wrong record all the time. Accept $6.50 to painstakingly go through each and every page to ensure there are no sensitive items protected by federal and state laws, such as HIV, Drug and Alcohol, Genetic Testing, Psychotherapy Notes, etc.? Accept $6.50 for ANY service you provide? It is ridiculous that someone would think that this is an acceptable amount for protected health information and the liability that goes with releasing such information. I pay this amount for a basic cup of coffee. For some reason you believe that only ROI vendors incurs these fees. You accept the fact that the “healthcare industry” should bear YOUR operational costs as a “for profit” law firm. Do you also control the costs of private investigators? Certainly this is another operational cost of your “for profit” company. Remember, your client is broke. This argument is baseless!! Last time I paid my attorney’s bill, it was $250 per hour whether I was broke or not.

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      • Thank You for responding! I’m the one who responded first to this article that was written. What you wrote is exactly how it is. Because of the fees, I have gone from a 6 person company down to 2 person company because of the lack of money coming in. Sadly enough now I put in 10 to 11 hour days trying to keep up with the releases that come in daily and do what 4 other people used to do. Thank you again, maybe someday it will change!!

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    • It would appear that it’s your clients who chose the “wrong providers”, as they were the ones going to a clinic using paper records.

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